Latest / Wrongful Conviction / #546 Jason Flom with David Smith

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#546 Jason Flom with David Smith · Wrongful Conviction

0:02
Speaker 1: On October sixteenth, twenty fifteen, twenty four year old Courtney
0:06
Speaker 1: Tolliver was struck by a blunt object in her Portage County,
0:10
Speaker 1: Ohio trailer home. After running to the neighbors for help,
0:15
Speaker 1: she was rushed to the hospital and put into a
0:17
Speaker 1: medically induced coma. When she regained consciousness, her memory was unclear.
0:23
Speaker 1: Soon detectives suggested David Smith, a man who had texted
0:27
Speaker 1: her that day, but she said it wasn't David until
0:30
Speaker 1: she was facing her own charges. Then her memory made room.
0:35
Speaker 2: For that possibility.
0:37
Speaker 1: This is Wrongful Conviction. Welcome back to Wrongful Conviction, where
0:51
Speaker 1: we returned to Portage County, Ohio. Now, the last time
0:54
Speaker 1: we covered a case out of there was Tyrone Noling
0:57
Speaker 1: and that one lives rent free in my head, and
1:00
Speaker 1: we're going to link to his story in the episode description. Tragically,
1:03
Speaker 1: he's still on death row to this very day in Ohio,
1:06
Speaker 1: and we're only aware of the wrongful conviction epidemic in
1:09
Speaker 1: that state because of the incredible attorneys who also call
1:12
Speaker 1: Ohio home, not least of which is Kim Kral Kim.
1:16
Speaker 3: Welcome back, Yeah, thanks for having me back.
1:19
Speaker 1: And she's here to help tell the story of the
1:21
Speaker 1: man himself, David Smith. Thank you for joining.
1:24
Speaker 2: Us, right, thank you. I appreciate you.
1:27
Speaker 1: And typically we like to hear about our guest lives.
1:30
Speaker 1: You know, before all this insanity came to pass. And
1:34
Speaker 1: with David, that's forty seven years. I mean, he wasn't
1:37
Speaker 1: he wasn't a youngster when he went to prison. But
1:39
Speaker 1: those forty seven years they weren't easy ones, were they.
1:42
Speaker 2: I was taken from my real parents at the age
1:46
Speaker 2: of six, giving up for adoption. I had eight brothers
1:49
Speaker 2: and sisters, and I went from foster home to group home,
1:52
Speaker 2: foster home to group home, and finally a man picked
1:55
Speaker 2: me up as someone that he wanted as his son.
2:00
Speaker 2: In order for him to adopt me, he had to
2:02
Speaker 2: have a wife, so he married my mother under false
2:06
Speaker 2: tensus for real. Because fast forward, it was a whole
2:09
Speaker 2: lot of abuse in the home, I mean extreme abuse,
2:13
Speaker 2: physical abuse. So where I got upset with my mother
2:16
Speaker 2: was there couldn't have been nothing in that home that
2:18
Speaker 2: could have been worse where you would have to give
2:21
Speaker 2: me away. If it wasn't good enough for you, then
2:25
Speaker 2: why should it be good enough for me? Why didn't
2:27
Speaker 2: you take me with you? And a judge also made
2:30
Speaker 2: that statement to her, and she said she couldn't because
2:33
Speaker 2: that would have been kidnapping. In my head, I'm saying,
2:36
Speaker 2: how could that be? You can prove the abuse by
2:40
Speaker 2: the markings on my body, by me warning myself back
2:43
Speaker 2: to the state. But I wasn't good enough to take
2:47
Speaker 2: with you.
2:48
Speaker 1: So after his mother left him in this man's custody,
2:51
Speaker 1: he found a way to get himself out of that
2:54
Speaker 1: awful situation.
2:55
Speaker 2: At the age of ten, I warded myself back to
2:57
Speaker 2: the state. We went in to see the judge on
3:00
Speaker 2: some kind of official business dealing with the adoption park, and
3:04
Speaker 2: I told the judge I'm not going back there, and
3:06
Speaker 2: he looked at me and he couldn't figure out why.
3:10
Speaker 2: And I said, I'm just not going back with that man,
3:13
Speaker 2: while he was sitting right next to me. And that
3:15
Speaker 2: day forward, my life began by myself, without me having
3:19
Speaker 2: any kind of guidance or direction. The only thing I
3:23
Speaker 2: knew to do was to survive. It didn't tailed me
3:26
Speaker 2: committing crimes. I didn't know any better, and all it
3:30
Speaker 2: did was grew until it grew out of control. I
3:35
Speaker 2: was constantly detention centers, juvenile facilities. I was numb. I
3:41
Speaker 2: was just a mechanical animal out here, just trying to
3:43
Speaker 2: survive my life. At that time, I was just a
3:46
Speaker 2: car thief boy, and then that grew to the life
3:50
Speaker 2: of crime as the adult. I had a robbery case,
3:53
Speaker 2: a boloneyssault case, and then twenty fourteen, I had got
3:58
Speaker 2: into the trade selling drugs. That's all I've known up
4:03
Speaker 2: until ten years ago, when I actually started getting my
4:07
Speaker 2: life together. I had opened up two small businesses. I
4:10
Speaker 2: moved out of Portage County and moved to Trumble County,
4:13
Speaker 2: Newton Folls.
4:14
Speaker 1: And that's where he lived with his girlfriend, Margaret Austin,
4:17
Speaker 1: while both getting his cleaning business off the ground and
4:20
Speaker 1: remaining in touch with friends in Portage County, including the
4:24
Speaker 1: victim in this case, a twenty four year old woman
4:27
Speaker 1: named Portney Tolliver who was also involved in the drug trade.
4:31
Speaker 1: And on the night before the incident, she had texted
4:33
Speaker 1: David for a ride to Cleveland, and so they were
4:36
Speaker 1: in contact earlier that day, that fateful day of October sixteen,
4:39
Speaker 1: twenty fifteen, and then she suddenly stopped texting David right
4:43
Speaker 1: around the time that she had been struck with the
4:45
Speaker 1: blunt object inside of her trailer home.
4:48
Speaker 3: Nine one one gets a call from a neighbor that
4:51
Speaker 3: Courtney Tolliver is wandering around sort of between trailers and
4:55
Speaker 3: collapses on the ramp of her trailer and and they
5:00
Speaker 3: believe she's muttered something about being hit with a hammer.
5:03
Speaker 3: The police arrive, she is taken by EMS and then
5:07
Speaker 3: life light. She is put into a medically induced coma
5:11
Speaker 3: and during this time the Portage County Sheriff's Office begins
5:15
Speaker 3: an investigation. I'm using the term investigation very lightly because
5:19
Speaker 3: they gathered I mean, I think five items of physical evidence,
5:22
Speaker 3: all of which have since been lost. So they take
5:25
Speaker 3: a few photographs. They gather five items of physical evidence,
5:29
Speaker 3: and they swab a number of things for DNA. There
5:32
Speaker 3: is a hammer on site that is not collected as evidence.
5:36
Speaker 3: The photograph of it, it appears to have no blood
5:39
Speaker 3: on it. What is most interesting is there is a
5:41
Speaker 3: stool absolutely covered in blood. When you zoom in you
5:46
Speaker 3: can see a hair fiber on it. There is a
5:48
Speaker 3: massive puddle of blood around this stool. Now, this stool
5:52
Speaker 3: is not swabbed, it's not collected, it's hardly photographed. There
5:56
Speaker 3: is a set of keys that are moved onto a
6:01
Speaker 3: puddle of blood, so someone touched those keys after the incident.
6:04
Speaker 3: Those were not gathered or swabbed or finger printed.
6:09
Speaker 2: And it was a size six footprint that was inside
6:12
Speaker 2: the blood, a woman's size six shot. The detective said
6:16
Speaker 2: that they didn't step into blood, They didn't do none
6:18
Speaker 2: of that. So whose size six shoot was this?
6:21
Speaker 3: There was a lock box which someone opened, whoever did this,
6:25
Speaker 3: that was not swabbed or fingerprinted. It was gathered but
6:29
Speaker 3: never used as evidence and has since been lost. There
6:32
Speaker 3: was a laptop that the contents of which were never investigated,
6:36
Speaker 3: that was lost. And she had two cell phones.
6:39
Speaker 1: Courtney described one cell phone as her family phone and
6:42
Speaker 1: the other as her drug phone, but at the time
6:45
Speaker 1: of trial, the state claimed to only have the records
6:48
Speaker 1: for the family phone, which she had used to text
6:51
Speaker 1: David about a ride to Cleveland.
6:52
Speaker 3: And so throughout that evening they go back and forth
6:55
Speaker 3: with text about a ride to Cleveland, and throughout the
6:57
Speaker 3: next morning, Dave says, I have a job interview. We
7:00
Speaker 3: know from the location of his cell phone. He goes
7:02
Speaker 3: to a job interview, and then there's text back and forth,
7:05
Speaker 3: and then she drops off the texting and he says,
7:07
Speaker 3: what do you want to do? I'm pulling up and
7:10
Speaker 3: then no response.
7:12
Speaker 2: But she was text messaging people steal on that other
7:16
Speaker 2: phone when this crime was supposed to have occurred with me. Anyway,
7:21
Speaker 2: they say it has happened between ten thirty and ten
7:24
Speaker 2: forty five with me. But at ten forty something she
7:28
Speaker 2: was still on the phone, text messaging and making calls
7:31
Speaker 2: with whoever she was talking to.
7:33
Speaker 1: But the drug phone record and this exculpatory context were
7:36
Speaker 1: not discovered for many years. Nevertheless, the police visited David,
7:40
Speaker 1: who confirmed his number, and they probably visited the people
7:43
Speaker 1: on the other phone log too, And soon Courtney came
7:47
Speaker 1: out of the coma.
7:49
Speaker 3: She cannot speak because she's intubated, and she writes down
7:53
Speaker 3: who did this to me? She had been engaged in
7:56
Speaker 3: a number of drug transactions the night before and the
7:59
Speaker 3: next day early in the morning before this attack. They
8:02
Speaker 3: don't investigate any of those people in any manner whatsoever.
8:05
Speaker 3: They don't investigate any other person she contacts or calls.
8:09
Speaker 1: Or they did, but they just didn't keep any record
8:12
Speaker 1: of it. Now, when Courtney's intubation tube came out, they
8:15
Speaker 1: interviewed her again and again she said that she had
8:18
Speaker 1: no recollection of what had happened, and in between that
8:21
Speaker 1: visit and the following one, they ran some of the
8:24
Speaker 1: crime scene evidence through CODIS, the national database, and they
8:28
Speaker 1: came up with a possible match, not a true match,
8:31
Speaker 1: but a possible match for David Smith. So while waiting
8:34
Speaker 1: for confirmation of that, they visited Courtney once again, this
8:39
Speaker 1: time recording the interaction and telling her whose DNA they
8:43
Speaker 1: believed that they had found at the scene.
8:46
Speaker 3: When they go interview her on December ninth, they hold
8:49
Speaker 3: up a single photo of David Smith and tell her
8:51
Speaker 3: this man is a dangerous man. We already spoke to him.
8:54
Speaker 3: He did this to you. He wanted you dead. He
8:56
Speaker 3: doesn't care about you. And she does not identify him
8:59
Speaker 3: as her attacker. She says, why would he do this
9:02
Speaker 3: to me?
9:03
Speaker 1: And she seems to have some foggy recollection of her attacker.
9:07
Speaker 2: She states that the guy had blue tip Dreds. I
9:11
Speaker 2: don't have blue tip Dreds. I think I've been bald
9:14
Speaker 2: for twenty five years at least. And the blue tip
9:18
Speaker 2: Dreds is the person that their mother called and asks
9:22
Speaker 2: did you try to kill me? And his name is Hood.
9:25
Speaker 3: In a recording, her mother says, we called and asked
9:28
Speaker 3: him why he did this?
9:30
Speaker 2: And this is a person that she been known forever,
9:33
Speaker 2: good friends, they do business together, they kick it together.
9:37
Speaker 2: They was like peanut, butter and jelly. Why would you
9:39
Speaker 2: call him and ask him did he try to kill you?
9:42
Speaker 1: So Corney and her mother had their own suspects. They
9:45
Speaker 1: even mentioned others in that recording, some of whom were
9:49
Speaker 1: on that other call log. But at this point the
9:51
Speaker 1: police appeared to be hoping for their possible codus match
9:54
Speaker 1: with David was going to be confirmed, but it wasn't,
9:58
Speaker 1: so now they began to scream.
10:00
Speaker 3: What we found later with these alternative suspects is detector
10:03
Speaker 3: Johnson's calling the BCI, people who handle the DNA testing
10:07
Speaker 3: and telling them we have these alternative suspects. They could
10:10
Speaker 3: have been involved. Here's why they actually let Courtney Tolliver's
10:15
Speaker 3: children's father out of jail to help investigate for them.
10:19
Speaker 2: Our baby daddy was talking to his mother and his
10:23
Speaker 2: aunt on the phone in the county jail and said
10:27
Speaker 2: that she said who did it to her?
10:29
Speaker 3: And then they don't disclose the information they get from him.
10:33
Speaker 3: And then as BCI is calling back saying these other
10:35
Speaker 3: people's DNA. Most of his DNA isn't matching to anyone,
10:40
Speaker 3: almost all of it. Then Johnson starts to just narrow
10:42
Speaker 3: in on David. Smith refuses to give anyone else's DNA
10:45
Speaker 3: and refuses to turn over any discovery about these other
10:49
Speaker 3: alternative suspects.
10:50
Speaker 1: At this point, they returned to the DNA that had
10:53
Speaker 1: been a possible match to David. And if you've ever
10:56
Speaker 1: seen a DNA analysis graph also known as an electro pharah,
11:01
Speaker 1: it looks like a series of little peaks marking genetic
11:04
Speaker 1: alleles that are present in a given sample, which are
11:07
Speaker 1: measured in relative fluorescence units or RFUs, And it seems
11:11
Speaker 1: like there were enough peaks in common with David and
11:14
Speaker 1: this DNA sample to trigger a possible match in codis,
11:18
Speaker 1: but not an actual match. And there are ways to
11:22
Speaker 1: enhance the quantity of a sample as well as the
11:24
Speaker 1: height of the peaks or what lies between the peaks,
11:27
Speaker 1: what is called static to see if potentially there is
11:31
Speaker 1: other genetic information.
11:33
Speaker 3: It's an amplification process, which was a process they used
11:35
Speaker 3: for the first time in Portage County in his case,
11:37
Speaker 3: and they're only supposed to amplify a certain number of
11:39
Speaker 3: times and that amplification creates static, and those static points
11:45
Speaker 3: either can cause you to misteray actual alleles as static,
11:48
Speaker 3: or you can have static so high, which is nothing.
11:51
Speaker 3: It's not real information. It's created from the amplification process
11:56
Speaker 3: that can be read as an allele, a marker in
11:58
Speaker 3: a certain space. They enlarged that possible match to Dave Smith,
12:03
Speaker 3: and it was still not a match to Dave Smith.
12:05
Speaker 3: So they enlarged it a second time, and it was
12:07
Speaker 3: still not a match to Dave Smith. And they enlarged
12:09
Speaker 3: it a third time and it was a match in
12:13
Speaker 3: equal parts to Dave Smith and the victim.
12:17
Speaker 1: This triple amplification process produced an electro pharagram that differed
12:23
Speaker 1: from previous iterations in order to produce this result, and
12:27
Speaker 1: it's unknown whether these differences may have been actual genetic
12:31
Speaker 1: information or nothing at all. So there's a potential here
12:35
Speaker 1: for subjectivity, false positives and negatives, and definitely a lot
12:41
Speaker 1: of room for doubt.
12:42
Speaker 3: But an unreliable process in this case produced a result
12:45
Speaker 3: that there's a one in one fifty chance it's anyone
12:48
Speaker 3: but David Smith or Courtney Tolliver, which is not a
12:50
Speaker 3: match at all. So one in one fifty chance means
12:53
Speaker 3: it could have been twenty seven thousand other people in
12:56
Speaker 3: Portage County.
12:57
Speaker 1: So at this point they returned to court me for
13:00
Speaker 1: an identification, and they doubled.
13:02
Speaker 2: Down on David.
13:03
Speaker 3: Obviously, without that identification, they had some trash DNA and
13:08
Speaker 3: that's about it. She continues to not identify David Smith
13:11
Speaker 3: as her attacker for several more months until February of
13:15
Speaker 3: twenty sixteen. She had I believe eight or nine felony
13:19
Speaker 3: drug counts pending. In February, those counts are resolved with
13:22
Speaker 3: the same judge who tried David's case. Those are resolved
13:26
Speaker 3: to a term of probation, and she walks directly out
13:29
Speaker 3: of the courtroom into a little room immediately to the
13:31
Speaker 3: left and explains to Detective Johnson that she now remembers
13:37
Speaker 3: that she had a dream while in her coma she's
13:41
Speaker 3: as a baal black man mased her, and she now
13:44
Speaker 3: interprets that to me that David Smith hit her with
13:47
Speaker 3: a hammer in October of twenty fifteen.
13:51
Speaker 1: So no more assailant with blue dreads and no more
13:55
Speaker 1: felony drug charges. Maybe she had no idea who had
13:59
Speaker 1: hit her, but now at least she found a way
14:02
Speaker 1: that she could get something out of it.
14:04
Speaker 2: No, I think she has an idea, and I think
14:07
Speaker 2: that what really transpired is something that her and the
14:11
Speaker 2: person that did it is going to take to the grade.
14:14
Speaker 2: I mean, if somebody beat me like that, I'm gonna
14:18
Speaker 2: know who it was beat me.
14:20
Speaker 1: Nevertheless, it was enough for an arrest warrant on April first,
14:23
Speaker 1: twenty sixteen.
14:24
Speaker 2: That morning, I have my cell phone in one hand
14:28
Speaker 2: and my car keys and the other. I chirked my
14:30
Speaker 2: truck and I stepped one foot in and when I
14:33
Speaker 2: look in the rearview mirror, it's a black, undercovered car
14:36
Speaker 2: bumper to bumper with me. He pulled out his gun.
14:39
Speaker 2: He's like, free, stick your hands out, and I stick
14:41
Speaker 2: my hands out and I said, what's this about? Officer?
14:44
Speaker 2: He put the handcuffs on me, and then he said,
14:46
Speaker 2: you have a warren for a tempted murder. And I
14:50
Speaker 2: damn that passed out. Like what.
15:04
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Speaker 1: on Apple Podcasts.
15:20
Speaker 2: It was the biggest case of Portish County. Everybody at
15:24
Speaker 2: that time at Portish County Jail tried to get on
15:28
Speaker 2: that witness list to testify against me so they could
15:31
Speaker 2: get out of jail. The detectives was pulling up on people,
15:34
Speaker 2: talking about you ain't gonna get in trouble. All you
15:37
Speaker 2: got to do is just tell us you was down
15:38
Speaker 2: there witting. I mean, all this is video and recording.
15:43
Speaker 1: Eventually, the investigators came upon some willing participants who they
15:47
Speaker 1: could actually use, starting with a couple who knew David
15:50
Speaker 1: from the drug trade, Randy Milem and Florence Fontanella. And
15:53
Speaker 1: Randy was the one who made the first statement.
15:56
Speaker 2: I mean, if you looked at the video of this interview,
16:00
Speaker 2: be like, this is a dope fiend trying to get
16:02
Speaker 2: out because she's telling the the detectives all these ale
16:05
Speaker 2: Lander's statements. But he's also saying, are you going to
16:09
Speaker 2: go to the judge and tell her to let me out?
16:13
Speaker 2: He came up with a story that I told him
16:15
Speaker 2: I did it. I told him I left the hammer
16:17
Speaker 2: at the house, that me and this girl did it together.
16:21
Speaker 1: Then Florence Fontanella, who was facing her own charges, was
16:24
Speaker 1: approached about being in Randy's car during the alleged confession.
16:28
Speaker 2: The DEA went to her house and asked her up
16:31
Speaker 2: and she said, I don't know nothing about that. She said,
16:34
Speaker 2: I was in the vehicle, Winnie, and I never heard
16:36
Speaker 2: that man say he did anything. And the very next
16:39
Speaker 2: day they had a warned for her arrest. When back
16:42
Speaker 2: picked her up brought it to Forty County jail, she
16:45
Speaker 2: wrote a statement, I was in the car and I
16:48
Speaker 2: didn't hear none of that. She made recorded calls on
16:52
Speaker 2: the phone and said Randy must be in trouble and
16:54
Speaker 2: I didn't hear none of that. But two weeks later
16:58
Speaker 2: she spent around and said I as a forthcoming. She said,
17:01
Speaker 2: I didn't hear nothing but him say got the bitch
17:04
Speaker 2: with a hammer.
17:05
Speaker 1: And then once Florence hopped on board, Randy recanted. So
17:08
Speaker 1: now they couldn't afford to lose Florence as well.
17:11
Speaker 2: Florence found it Tello. She was scheduled to go for
17:15
Speaker 2: sentencing a week before my trial. They postponed her sentencing
17:20
Speaker 2: to make sure that she testified for the deal that
17:24
Speaker 2: they gave her. She went to treatment facility by Addings.
17:27
Speaker 3: Instead of prison. Yet she switched her story quite literally
17:30
Speaker 3: when she.
17:31
Speaker 1: Got the deal, and they pulled a similar stunt with
17:34
Speaker 1: another acquaintance of David's who was named Lisa Frame. Ironic
17:39
Speaker 1: name much, Lisa Frame, Come on now.
17:42
Speaker 3: Lisa Frame was in Jefferson County jail and Lisa Frame
17:46
Speaker 3: drove a black car. A black car can be seen
17:50
Speaker 3: driving in and out of the trailer park around the
17:53
Speaker 3: time they believe the crime happened. And to me, it's
17:58
Speaker 3: pretty clear if they knew someone. It was a known
18:00
Speaker 3: associate of David Smith with a black car. She was
18:03
Speaker 3: in jail. They went to the jail threatened to charge
18:05
Speaker 3: her with conspiracy to commit attempted murder unless she told
18:09
Speaker 3: them that she drove Dave Smith there.
18:12
Speaker 2: And so she said, would tell me what you want
18:14
Speaker 2: me to say then, and I'll say it.
18:17
Speaker 1: And this insanity is on tape.
18:19
Speaker 2: Yeah.
18:20
Speaker 3: She says there was a day she gave Dave Smith
18:23
Speaker 3: a ride, but she wasn't sure what day it was.
18:25
Speaker 3: She took him to the trailer park. He was in
18:27
Speaker 3: there a couple minutes and he came back. He had
18:29
Speaker 3: no blood on him or anything. He wasn't in any
18:31
Speaker 3: state of outrage or upset or panic or anything. She
18:36
Speaker 3: doesn't say anything about having a hammer on him, but
18:38
Speaker 3: she says he has something and wrapped up in his shirt,
18:40
Speaker 3: which she thinks is a gun, and she reiterates she
18:43
Speaker 3: has no idea what Dave this happened.
18:46
Speaker 2: Lisa Frame said, I called him several times that would
18:50
Speaker 2: have blocked me and Lisa Frame into that day that time.
18:54
Speaker 2: But they said that they took her phone and plugged
18:57
Speaker 2: it into the computer and they couldn't get nothing out
19:00
Speaker 2: of it.
19:00
Speaker 1: Oh, I'm sure.
19:02
Speaker 3: And not only did they plug it in and decide
19:04
Speaker 3: that it wasn't computering, but they then thought, should we
19:09
Speaker 3: keep it?
19:09
Speaker 2: Should we keep it?
19:10
Speaker 3: Should we store it somewhere important? Nobody knows it has
19:14
Speaker 3: disappeared into thin air. And in all of the phone
19:17
Speaker 3: records that were available in this case, they got one
19:19
Speaker 3: set of phone records which helped the tail they were spinning,
19:23
Speaker 3: and then everything else was unavailable.
19:25
Speaker 1: So to shore up Lisa Frames date and time, they
19:27
Speaker 1: pulled surveillance footage from a Walmart parking lot showing two
19:31
Speaker 1: black cars traveling in the direction of the trailer homes
19:34
Speaker 1: around the time of the last text message from David,
19:36
Speaker 1: and then only one leaving shortly after. And we could
19:40
Speaker 1: get into how possible or impossible it was that these
19:44
Speaker 1: were even her car, and how long it would take
19:48
Speaker 1: for the round trip plus the bludgeoning. But why unpack
19:51
Speaker 1: a bunch of meaningless bullshit that's masquerading as evidence when
19:55
Speaker 1: the logical framework is built on the word of someone
19:58
Speaker 1: who said a recording, tell me what you want me
20:02
Speaker 1: to say, and I'll say it. So they went ahead
20:05
Speaker 1: to trial with Lisa Frame, Florence Fontanello, Courtney Tolliver and
20:11
Speaker 1: the bogus DNA evidence, which magically seemed to have gotten
20:14
Speaker 1: a boost of credibility in the lead up to the trial.
20:17
Speaker 3: Before twenty sixteen, when they come up with the electro faarrograms,
20:21
Speaker 3: the peak had to be taller than seventy five RFUs
20:25
Speaker 3: otherwise it could have been static and it's too risky
20:28
Speaker 3: to consider it. But in between October twenty fifteen to
20:32
Speaker 3: Fall twenty sixteen, BCI published a paper saying, now, just
20:37
Speaker 3: in the nick of time, they're allowed to lower the
20:40
Speaker 3: threshold to fifty RFUs and count peaks that really fall
20:44
Speaker 3: in that high risk static range.
20:47
Speaker 1: So this lowering of standards allowed for the triple amplified
20:50
Speaker 1: DNA sample to be presented as a partial match to
20:54
Speaker 1: both David and Courtney, which is a confusing result, and
20:57
Speaker 1: implied that it could have been David, but it eventually
21:00
Speaker 1: turned out it could have also been so many others.
21:04
Speaker 3: Yes, the neighbor across the street, in fact, when we
21:07
Speaker 3: compared it, had more alleles in common with this sample
21:10
Speaker 3: than Dave Smith did, and had blood on his pants
21:13
Speaker 3: and was present when the police arrived. And I'm not
21:15
Speaker 3: saying he did it, but I'm evidencing how we manipulate
21:20
Speaker 3: DNA to say what we wanted to say, and that's
21:22
Speaker 3: what they did in this case.
21:24
Speaker 1: And the steak got one last helping hand. David's attorney
21:27
Speaker 1: filed to suppress the victim's identification because if you remember,
21:31
Speaker 1: the December ninth, twenty fifteen, interaction was recorded when Lieutenant
21:35
Speaker 1: Johnson was suggestive with the witness.
21:40
Speaker 3: Yes, he literally is saying, this man is dangerous, he
21:44
Speaker 3: wanted you dead. We know that he did this, and
21:47
Speaker 3: she's still not identifying him. And what is crazy is
21:50
Speaker 3: Tolliver's mother is in that same interview, and in the
21:53
Speaker 3: course of the conversation, Tlliver's mother is talking about other
21:57
Speaker 3: people that they believe did this.
21:58
Speaker 1: By name specifically Hood with the blue tipped dreads. But
22:02
Speaker 1: the motion to suppress the id was denied, and by.
22:06
Speaker 3: The time we get to the first trial, they don't
22:08
Speaker 3: allow that to be played in court. Instead, the court says, well,
22:11
Speaker 3: they have the transcript of it. The jury's going to
22:14
Speaker 3: get the transcript.
22:15
Speaker 2: But it took me ten years to find out that
22:18
Speaker 2: those transcripts wasn't even accurate. In the first place.
22:21
Speaker 3: The transcript had the names of the other potential suspects redacted,
22:26
Speaker 3: and it had it redacted in such a manner that
22:29
Speaker 3: it then sounded like his mother was still talking about
22:32
Speaker 3: David Smith. We called him and asked him why he
22:34
Speaker 3: did this, implicating that they believed it was Dave Smith,
22:38
Speaker 3: when really what they said about Dave Smith was why
22:40
Speaker 3: would he do that to me? She said, he gave
22:43
Speaker 3: me a ride once? Why would he do this?
22:45
Speaker 1: So even if the jury planned on reading them, they'd
22:48
Speaker 1: be misled by the redacted text anyway. And that's how
22:51
Speaker 1: both Lieutenant Johnson and Courtney Tolliver testified about the identification
22:55
Speaker 1: without being irreparably impeached. Instead, the cross examination was new.
23:00
Speaker 1: While Courtney took the.
23:02
Speaker 3: Stand, she testifies with one hundred percent certainty that David
23:05
Speaker 3: Smith came to her door and attacked her with a hammer.
23:08
Speaker 1: And despite cross examination, this was still a bludgeoning victim
23:12
Speaker 1: naming her attacker.
23:13
Speaker 2: But this is the key to a one hundred percent
23:17
Speaker 2: sure This dream summary never came up to that detective
23:22
Speaker 2: shoulder that picture. And then now she's saying, in my dream,
23:25
Speaker 2: I dreamt it was him. But there was never a
23:28
Speaker 2: dream summary in the hospital on November seventh. But whatever
23:32
Speaker 2: it was that the detectives came to the hospital and
23:35
Speaker 2: asked you, and you say it, I have no memory of.
23:37
Speaker 1: That, perhaps having not heard the contextual audio recording or
23:41
Speaker 1: having not heard a word about the deal she got
23:44
Speaker 1: for her nine felony drug charges. Sadly unsurprising that the
23:48
Speaker 1: jury accepted the bogus idea as truth and then came
23:52
Speaker 1: the quote unquote supporting evidence. Like Florence Fontanello, who had
23:58
Speaker 1: her own issues.
23:59
Speaker 3: Initially, she says that David Smith had nothing to do
24:02
Speaker 3: with this, and she says it in these Facebook communications
24:05
Speaker 3: with Margaret Austin. Randy Mulam comes forward and tells them
24:09
Speaker 3: what they want to hear. Then she all of a
24:11
Speaker 3: sudden switches to Team State and She says David Smith
24:16
Speaker 3: made an admission to her.
24:18
Speaker 2: When my attorney actor, well, what did you hear in
24:21
Speaker 2: the conversation, she said, I didn't hear nothing but him say,
24:25
Speaker 2: got the bitch with a hammer.
24:26
Speaker 3: And she's confronted with these Facebook texts, but maintains that
24:30
Speaker 3: David Smith made an admission to her.
24:32
Speaker 2: She told the jury the reason why she didn't come
24:35
Speaker 2: forward because she was scared.
24:37
Speaker 1: The jury was also unaware of the deal that she
24:40
Speaker 1: had received, as well as the threat that Lisa Frame
24:44
Speaker 1: had sidestepped with her testimony, which was supported by surveillance
24:47
Speaker 1: footage of random black cars traveling toward the trailer park.
24:52
Speaker 3: There's not a single photo of what her actual black
24:55
Speaker 3: Cadillac looks like. Even though they had a search, weren't
24:58
Speaker 3: for it, and they searched it all. They took not
25:01
Speaker 3: a photo of anything. But they did take a floor
25:05
Speaker 3: mat and they tested the floor mat for either Dave's
25:08
Speaker 3: DNA or blood or any blood splatter at all. Because
25:11
Speaker 3: this was one of the bloodiest crime scenes I've seen.
25:13
Speaker 3: There's not a drop respect of blood on the matt
25:17
Speaker 3: note of Dave's DNA. But then since we have no
25:19
Speaker 3: photo of the car to say whether that was the
25:21
Speaker 3: car pulling into the trailer park or not. They just
25:26
Speaker 3: infer to the jury that it is, and that Lisa
25:29
Speaker 3: Frame doesn't remember the day, but that was the day,
25:30
Speaker 3: and that also she must just be confused about how
25:33
Speaker 3: Dave Smith didn't by any stretch looked like he had
25:35
Speaker 3: just hammered someone nearly to death.
25:38
Speaker 1: So after hearing only some of the impeaching issues about
25:42
Speaker 1: every single one of the state's witnesses, and having heard
25:45
Speaker 1: the identification of the attacker without the context of how
25:48
Speaker 1: that identification came to be, the jury went to deliverate.
25:52
Speaker 2: I mean, there's a lot of evidence that the jury
25:56
Speaker 2: wasn't able to deliver right on, and they came back
26:00
Speaker 2: two days later with a guilty burden twenty three years flat.
26:04
Speaker 2: They told me I wasn't coming home till I was
26:05
Speaker 2: seventy one years old, and I just started it at
26:09
Speaker 2: forty seven. I was angry about it, but I wasn't
26:26
Speaker 2: bitter because before I left out of that court room,
26:31
Speaker 2: I told the detective Lieutenant Johnson, I'll see you again
26:35
Speaker 2: in trial, and he said to me, I'll be there.
26:39
Speaker 2: And for ten years I made sure that I was
26:42
Speaker 2: going to be there to see him again. While the
26:46
Speaker 2: appeal was going on, I was in a law library
26:48
Speaker 2: every single day.
26:50
Speaker 1: Like so many of our guests, David learned the law,
26:53
Speaker 1: and after his direct appeal failed, he began fining motions
26:57
Speaker 1: pro se, meaning on his own, without the up of
27:00
Speaker 1: an attorney.
27:01
Speaker 2: I did a post conviction on ineffect assistance of council
27:05
Speaker 2: for the not playing those audios in court. They shut
27:09
Speaker 2: that down. She said that there was nothing outside the
27:12
Speaker 2: records because these transcripts and audios went back to the jury.
27:16
Speaker 2: Subsequently we found out they never went to the jury.
27:20
Speaker 1: Did never happened, And subsequently he filed his federal habias
27:23
Speaker 1: based on the impermissibly suggestive identification, citing the transcript of
27:28
Speaker 1: the December ninth, twenty fifteen recording, a transcript that they
27:32
Speaker 1: had thought was both complete and seen by the jury,
27:35
Speaker 1: and the filing made its way to the Sixth Circuit
27:37
Speaker 1: by twenty twenty two, by which point Kim had already
27:40
Speaker 1: joined the fight.
27:41
Speaker 2: By this time, Kim had set me the audio and
27:45
Speaker 2: the original transcripts of Courtney Tolliver's interview with Lieutenant Johnson,
27:50
Speaker 2: and when she said it to me and I was
27:52
Speaker 2: reading it, I said, Kim, these transcripts, it's not accurate.
27:55
Speaker 2: She like, what you mean? I said, they took evidence
27:58
Speaker 2: out of these transcripts. Send me to audio. I marked
28:01
Speaker 2: off where all the meat was, taking out the transcripts,
28:05
Speaker 2: the identification to somebody else and everything else, and I
28:08
Speaker 2: sent it back to her. She tended to an independent
28:10
Speaker 2: transcriber and they put all of it back inside the transcripts.
28:14
Speaker 2: They're authenticating through another transcriber, but they're not authenticating through
28:19
Speaker 2: the courts. Also, I didn't use these transcripts in my
28:23
Speaker 2: federal aid. So now we're in the six certain Court
28:25
Speaker 2: of Appeals and I bugging Kim and saying, how are
28:28
Speaker 2: we going to get these transcripts in the evidence. What's difficult?
28:32
Speaker 3: Though, We were procedurally in a place where you can't
28:34
Speaker 3: expand the record, and so knowing that they weren't going
28:37
Speaker 3: to allow me to expand the record at that time,
28:39
Speaker 3: I was just like making up other things to file
28:42
Speaker 3: that i'd have a reason to attach the transcripts.
28:45
Speaker 2: So when they read the motion, they're going to read
28:47
Speaker 2: the transcripts. And that's what we.
28:49
Speaker 3: Did, without regard to the fact that they removed a
28:52
Speaker 3: part of the transcript which contained exculpatory information and identified
28:56
Speaker 3: an alternative suspect. The court was just like, this wild
29:01
Speaker 3: identification procedure overly influenced her, and it's so bad. It's
29:05
Speaker 3: to such an extent that there's no way it can
29:07
Speaker 3: overcome even the stringent protections of EDPATH.
29:12
Speaker 1: EDPA is the Anti Terrorism and Effective Death Penalty Act,
29:15
Speaker 1: which was signed into law in the wake of the
29:17
Speaker 1: nineteen ninety six Oklahoma City bombing. And in order to
29:21
Speaker 1: reverse a state court decision quote, every fair minded jurist
29:25
Speaker 1: would have to agree end quote. So what they're saying
29:29
Speaker 1: is that not a single quote unquote fair minded judge
29:34
Speaker 1: in existence could have seen this another way. And the
29:37
Speaker 1: Sixth Circuit ruled that this seemingly impossibly high standard had
29:41
Speaker 1: actually been met, and.
29:43
Speaker 3: That's when they awarded him a habeous corpus on the
29:46
Speaker 3: condition that they have to release him if they don't
29:48
Speaker 3: retry him without that identification within six months.
29:52
Speaker 2: And it was just hard that it took me all
29:55
Speaker 2: this time. Quote just see where really happened to that case. Yeah,
30:02
Speaker 2: evidence didn't change, nothing changed, but it was jud just
30:05
Speaker 2: that seeing, hey, but this may did to this do
30:09
Speaker 2: this a right? You should have never went.
30:11
Speaker 1: To trial, so the state tried to stay the decision,
30:14
Speaker 1: which brought them about six weeks against the six months
30:17
Speaker 1: they were given, meaning they had to retry him by
30:20
Speaker 1: March thirteenth, twenty twenty five, and with the clock ticking,
30:24
Speaker 1: the state appealed to the denial of the stay as
30:27
Speaker 1: well as filed for sir tierrari with the US Supreme Court,
30:30
Speaker 1: both of which were almost unanimously denied in January of
30:34
Speaker 1: twenty twenty five.
30:36
Speaker 3: Since the ruling in July of twenty twenty four, I'd
30:40
Speaker 3: been actively filing defense motions, all of which went ignored
30:44
Speaker 3: until January for a trial that had to start by
30:48
Speaker 3: mid February, and so by the time they were responded to,
30:50
Speaker 3: like our emotions for expert, all of those deadlines that
30:53
Speaker 3: expired for us. And then two days before trial, they
30:57
Speaker 3: find a box labeled Detective Johnson. It was in the
31:00
Speaker 3: back of some garage and it contained exculpatory information. It
31:04
Speaker 3: referenced confidential informants.
31:06
Speaker 1: And this confirmed suspicions that Kim had raised before the
31:10
Speaker 1: July twenty twenty four ruling.
31:12
Speaker 3: While I'm working on David's case, I am randomly working
31:16
Speaker 3: another federal drug case and I'm in the trial and
31:20
Speaker 3: a confidential informants name is disclosed, which is wildly protected,
31:25
Speaker 3: but it is a name I recognize. So I go
31:27
Speaker 3: back to Portage County and I say, I have documentations
31:30
Speaker 3: signed by Portage County Sheriff's office indicating that this person
31:35
Speaker 3: was paid as a confidential informant right around the same
31:38
Speaker 3: time of this case, that they were on the payroll
31:41
Speaker 3: by the Portage County Sheriffs. And the sheriffs continually and
31:45
Speaker 3: repeatedly stated, we have no record of that, while I'm
31:49
Speaker 3: holding documentation signed by their office on their letterhead.
31:53
Speaker 2: The people that they had on the list suspects are
31:58
Speaker 2: confidential informants, and that.
32:00
Speaker 3: Would explain why they never even called them into interview them,
32:04
Speaker 3: not one of them. Did they identify their whereabouts at
32:06
Speaker 3: the time of the crime, did they get their cell
32:08
Speaker 3: phone records to see their location or their communication with
32:11
Speaker 3: Courtney Tolliger.
32:12
Speaker 1: Which definitely adds context as to why this second phone
32:16
Speaker 1: long was allegedly never gathered into evidence. And additionally, there
32:21
Speaker 1: was new context for how David's and only David's cell
32:25
Speaker 1: phone location had been obtained.
32:27
Speaker 2: When he got the warrant from my cell phone tower evidence.
32:32
Speaker 2: He told the judge that his DNA is on this
32:36
Speaker 2: scene and that's what he used to get a search WARM.
32:39
Speaker 2: When the people from BCIs and you have to do
32:43
Speaker 2: further investigation. This is not evidence, but he took it
32:47
Speaker 2: to the judge and the judge gave me a search
32:50
Speaker 2: WARM from my cell phone tower evidence.
32:53
Speaker 3: The big part of the first trial I was like,
32:55
Speaker 3: her last text message was to David Smith, she never
32:59
Speaker 3: texted anybody again. F that well, her other phone makes
33:01
Speaker 3: clear she's continuing texting and engaging with people for fifteen
33:05
Speaker 3: or twenty minutes after they believe the crime occurred, and
33:10
Speaker 3: that she has constant contact with one person more than
33:13
Speaker 3: one hundred times that day. That was another aspect of
33:16
Speaker 3: the case that was not a part of the first trial,
33:18
Speaker 3: and then they tried so hard not to make it
33:20
Speaker 3: a part of the second trial by arguing that we
33:22
Speaker 3: could not authenticate it because the records were ten years old.
33:25
Speaker 1: And that was an issue for everything that was found
33:28
Speaker 1: in Lieutenant Johnson's garage as they moved into the retrial
33:32
Speaker 1: in February twenty twenty five.
33:34
Speaker 3: Another one of the big issues at the retrial is
33:36
Speaker 3: that the state investigator who photographed the crime scene has
33:40
Speaker 3: retired and literally told them, sorry, I'm not coming in,
33:44
Speaker 3: So we were denied the opportunity to cross examine him
33:48
Speaker 3: about the photos on scene. You literally can't question anyone
33:51
Speaker 3: about anything you see in the scene. How can you
33:53
Speaker 3: develop arguments when you can't even point things out.
33:56
Speaker 1: Like whether or not the hammer was even the murder
33:58
Speaker 1: weapon at all. When the stool in the photo, well,
34:02
Speaker 1: it was an interesting alternative.
34:04
Speaker 3: What's interesting about it is someone touched it after it
34:06
Speaker 3: was used, because there's both blood under it that it
34:09
Speaker 3: is resting on top of and blood on top of it,
34:12
Speaker 3: so that is going to have meaningful evidence on it.
34:14
Speaker 3: Did they collect it? No, you didn't pick up the
34:16
Speaker 3: only hammer on scene, and you didn't pick up the
34:17
Speaker 3: thing that looks like a bludgeoning object covered in blood.
34:20
Speaker 3: You didn't pick up the plastic bag which was sitting
34:23
Speaker 3: on top of pile blood and also blood spleater on it.
34:26
Speaker 3: So it was moved after. You know, it was touched
34:29
Speaker 3: in some way in the course of this attack.
34:32
Speaker 1: But without that witness or a more well documented crime scene,
34:35
Speaker 1: the defense was hamstrung in this regard. But that was
34:38
Speaker 1: not the case when they confronted the DNA evidence at
34:42
Speaker 1: a pre trial hearing. As we discussed earlier, the triple
34:45
Speaker 1: amplification process on the DNA sample drew into question what
34:49
Speaker 1: were peaks and what was just static, which brings in
34:52
Speaker 1: room for subjectivity to something that should just be an
34:56
Speaker 1: objective science. And then Kim proceeded to present what this
34:59
Speaker 1: process meant for a neighbor's DNA When.
35:02
Speaker 3: I compared it to the neighbor, he had moraleles in
35:04
Speaker 3: common with that sample than David Smith did. When you
35:07
Speaker 3: bastardize the process, you get shit in, shit out. And
35:13
Speaker 3: to watch these experts sit up there and try and
35:16
Speaker 3: make sense of a senseless DNA procedure was just It
35:21
Speaker 3: was painful.
35:22
Speaker 2: The way she went in there and took the evidence
35:25
Speaker 2: and threw it in the trash. The prosecutor came walked
35:28
Speaker 2: over and said, listen, I'm gonna ask my boss if
35:31
Speaker 2: we could just walk him out of here with time
35:32
Speaker 2: serve and let him go. So the day before the
35:36
Speaker 2: trial started on February to twenty four, and they put
35:39
Speaker 2: it on the record time served. I said, no, I
35:42
Speaker 2: didn't fight like this just to go in there and
35:44
Speaker 2: plead guilty to somebody didn't do. I want my name
35:47
Speaker 2: clear for this. And the prosecutor looked at me and said,
35:50
Speaker 2: you got balls, and I looked at him and said, no,
35:53
Speaker 2: you have bulls because the sixth Circred Quarter of Appeals
35:56
Speaker 2: told you that you can't use this identification, and you
36:00
Speaker 2: have televised that's what you're going to do. Anyway.
36:03
Speaker 3: It is a habeas corpus in which he has to
36:06
Speaker 3: be released unless they try him within six months without
36:12
Speaker 3: using Tolliver's identification of Smith, which is suppressed and excluded.
36:18
Speaker 3: I have read it and retyped it so many.
36:20
Speaker 1: Times, and they were trying to interpret those words to
36:23
Speaker 1: make it permissible to have the victims identified David but
36:27
Speaker 1: not expressly as her attacker, right.
36:30
Speaker 3: Like, no, it doesn't say that. Like these are the
36:32
Speaker 3: highest judges in the country. They weren't confused. They meant
36:35
Speaker 3: to press and excluded. And when she woke up, she
36:37
Speaker 3: didn't remember anything about the day. So any identification which
36:41
Speaker 3: includes an identification of David Smith from that day would
36:44
Speaker 3: be the result of their overly influential, impermissible identification tactics.
36:49
Speaker 2: The day before trial we found emotion. And as for clarification,
36:54
Speaker 2: the Norther distrect Court of Appeals than not it summarily,
36:57
Speaker 2: because what is do to clarify?
36:59
Speaker 3: They said, we can't interpret what the six circuit means.
37:02
Speaker 3: What the six circuit means is you cannot use Tolliver's
37:05
Speaker 3: identification of Smith, which is suppressed and excluded. When that
37:09
Speaker 3: order comes out, I think, oh, thank god, this explains
37:11
Speaker 3: it to them. But they take it the other way.
37:13
Speaker 3: They're like, see, they said, we can't interpret what the
37:16
Speaker 3: six circuit does. So obviously the six circuit means she
37:19
Speaker 3: just can't identify him as her attacker. So she's allowed
37:22
Speaker 3: to say, that's David Smith, the ball black man and
37:26
Speaker 3: the yellow sweater. He came to my door and then
37:30
Speaker 3: I was struck with a hammer, and that's not an identification.
37:33
Speaker 1: And it would be hilarious if it wasn't so freaking sinister.
37:38
Speaker 1: And then they found a second way to bring it in.
37:41
Speaker 2: In the opening statements, he says, Courtney, Tolliver is going
37:46
Speaker 2: to come in here and tell you that David Smith
37:50
Speaker 2: hit her in the head with a hammer.
37:52
Speaker 1: And then Courtney took a stand.
37:53
Speaker 2: They say, well, can you identify the person that you
37:56
Speaker 2: said came to your house? She said, yes, that ball
38:00
Speaker 2: guy over there with a yellow shirt to brown souno
38:03
Speaker 2: and they said, well, let the record reflect she identified
38:06
Speaker 2: David Smith and it just said no. And she said,
38:10
Speaker 2: he was just standing on my porch. Okay, now what happened.
38:14
Speaker 2: I hit the legs and he opened the door and
38:16
Speaker 2: came in, and this thing I felt with a stroke
38:19
Speaker 2: and I woke up in the hospital.
38:20
Speaker 1: But somehow, in their minds this skirted the Sixth Circuits
38:25
Speaker 1: order that her identification was to be suppressed and excluded
38:30
Speaker 1: due to Lieutenant Johnson's impermissible procedure.
38:33
Speaker 3: And then after they get her to do this whull identification,
38:36
Speaker 3: I got to cross examine on the fact that it
38:38
Speaker 3: was a wildly prejudicial identification procedure. And they're like, oh, no,
38:45
Speaker 3: you can't cross him on that. You'd be opening the.
38:47
Speaker 1: Door, meaning the door to allowing her identification. It's unfucking real.
38:52
Speaker 3: And I'm like, is it genuinely your takeaway from the
38:55
Speaker 3: Sixth Circuits order that her identification is allowed? But I
38:59
Speaker 3: can't cross exams on the unreliability of the identification. You
39:03
Speaker 3: think their point was to make it worse than it
39:05
Speaker 3: was before.
39:06
Speaker 2: Yep, they did.
39:07
Speaker 1: They thought that, and then they found a way to
39:10
Speaker 1: make it even worse with Florence Fontanello, who by this
39:14
Speaker 1: time had recanted, but they weren't interested in hearing that,
39:18
Speaker 1: so they claimed they just couldn't find her.
39:22
Speaker 3: They got the court to admit her testimony from the
39:25
Speaker 3: first trial again, even though she had issued an affidavit
39:28
Speaker 3: saying that she had lied.
39:30
Speaker 2: They took the twenty sixteen transcripts and read them into
39:33
Speaker 2: a twenty twenty trial.
39:36
Speaker 3: So we can't cross examine her. They just read her
39:39
Speaker 3: testimony and everyone reads their own part, same prosecutor, same judge,
39:44
Speaker 3: And I'm like, I'm refusing to participate in this display
39:47
Speaker 3: of injustice. Like I'm not going to sit here like
39:49
Speaker 3: the defense attorney from ten years ago and read his part.
39:52
Speaker 3: I would make it very clear to the court that
39:54
Speaker 3: I'm not a part of this. We're just re enacting
39:57
Speaker 3: the same trial that was considered to be on constitution.
40:00
Speaker 2: Well, what if we did was set there without being
40:02
Speaker 2: able to say anything.
40:04
Speaker 3: I was so pissed off as I sat there in court,
40:07
Speaker 3: I ordered little Oscar statues and gave them to the
40:11
Speaker 3: judge and the prosecutors the next day, like here, since
40:13
Speaker 3: this is just a play, congrats on your acting.
40:17
Speaker 1: Nobody liked them, So the jury heard Florence Fontanellez recanted
40:21
Speaker 1: twenty sixteen testimony as well as the state's non identification
40:26
Speaker 1: identification right, and despite being threatened with opening the door
40:30
Speaker 1: to the full force of the unconstitutional evidence, they were
40:34
Speaker 1: able to provide some evidence about Courtney's two phones, and
40:37
Speaker 1: the records for the drug phone revealed that she had
40:40
Speaker 1: been active after the state had contended that this crime occurred,
40:45
Speaker 1: and that she had been contacted by an alternate suspect
40:48
Speaker 1: over one hundred times that morning. But with the passage
40:52
Speaker 1: of time, getting those records authenticated was the real problem.
40:56
Speaker 1: So Kim asked the investigators about these records and why
40:59
Speaker 1: they had gotten lost or what had happened to Lisa
41:02
Speaker 1: Frame's cell phone or for that matter, any of the
41:04
Speaker 1: physical evidence in this case.
41:06
Speaker 2: The detectives was saying they don't remember anything, and then
41:10
Speaker 2: with Kim refreshed their memory with their reports, they steer
41:14
Speaker 2: with Sam, I don't recall.
41:16
Speaker 3: That we had all this testimony about how they lost
41:18
Speaker 3: all the evidence, and then after they realized it was lost,
41:22
Speaker 3: sought a destruction order from the judge to destroy it
41:25
Speaker 3: so that we couldn't use it I could get one
41:27
Speaker 3: person to testify about some of the timing of the
41:30
Speaker 3: text and the second set of cell phone records. And
41:33
Speaker 3: because I wasn't allowed to admit those records, I was
41:36
Speaker 3: allowed to publish them in front of the jury. So
41:39
Speaker 3: I'm on a giant post it like writing down the
41:41
Speaker 3: evidence I hope they can consider, so that when they
41:44
Speaker 3: go back with half of the phone records, only the
41:47
Speaker 3: half that benefit the state, they'll remember having seen me
41:49
Speaker 3: write down the content of what mattered from the second set.
41:53
Speaker 3: And so I thought that if we attacked the quality
41:57
Speaker 3: of the investigation enough, it would be enough.
42:00
Speaker 2: Kim fought everything tooth and nail, and they went in
42:03
Speaker 2: there and came back at twelve o'clock with a guilty verdict, but.
42:07
Speaker 1: A plan to return the Sixth Circuit was already in motion.
42:11
Speaker 1: After all, these fucking people acted like they couldn't properly
42:14
Speaker 1: comprehend the Sixth Circuit's order. But if the conviction was vacated,
42:18
Speaker 1: then technically the Sixth Circuit no longer had jurisdiction, so
42:23
Speaker 1: David would have to start his appeal all over again.
42:27
Speaker 1: So David made sure that a copy of the Ohio
42:31
Speaker 1: Department of corrections docket was taken for evidence.
42:35
Speaker 2: When we filed the motion back to the court, they saying, hey,
42:38
Speaker 2: this case was vacated. The federal court don't have jurisdiction
42:42
Speaker 2: no more. My evidence was the docket, which there's no
42:45
Speaker 2: general wintry in there, that the case was vacated. Two
42:49
Speaker 2: the transport order. Three the ODRC website still said that
42:54
Speaker 2: I was convicted, that I was still under conviction, that
42:57
Speaker 2: it was never vacated. We fouled that most marks the twelve.
43:01
Speaker 2: After they found me guilty, the Jews answered they gave
43:04
Speaker 2: us a court day for April the first. They transported
43:06
Speaker 2: me back to Cleveland to the federal courthouse and Attorney General.
43:11
Speaker 2: It was kind of ugly because I've never seen the
43:13
Speaker 2: Jews treat nobody in the courtroom like that, especially attorney General.
43:17
Speaker 2: They were I mean, he was.
43:18
Speaker 3: Not shy and saying how could you guys have done this,
43:21
Speaker 3: like you touched the third rail, and not being from
43:24
Speaker 3: New York, he then had to explain what the third
43:26
Speaker 3: railmant to get into opposing council, like it's the thing
43:29
Speaker 3: you don't touch. That's how you get electrocuted. You don't
43:32
Speaker 3: touch the third rail, and you guys danced on the
43:34
Speaker 3: third rail. What did you put me in a position?
43:36
Speaker 2: What am I going to do?
43:37
Speaker 1: And even though the Northern District Court initially had a
43:40
Speaker 1: differing opinion than the higher six Circuit, they had no
43:44
Speaker 1: choice but to honor the higher court's ruling because the
43:47
Speaker 1: state's jurisdiction argument held no water. The conviction had not
43:50
Speaker 1: been vacated, but rather only a new trial had been ordered.
43:55
Speaker 2: On May to twelve, he called his back to the
43:58
Speaker 2: Northern District Court of.
43:59
Speaker 3: Appeals and I thank god the District Court did not
44:01
Speaker 3: agree with them, and they ordered that David Smith be
44:05
Speaker 3: granted an unconditional habeas corpus and that he'd be released.
44:10
Speaker 3: But then he stayed his order for seventy five days
44:13
Speaker 3: through the use of an administrative stay, which we appealed,
44:16
Speaker 3: and the Sixth Circuit basically said, there's no such procedure
44:19
Speaker 3: as an administrative stay in this context and he has
44:22
Speaker 3: to be let out. And that was on July third.
44:24
Speaker 2: Now it's a lot of third I was free on
44:27
Speaker 2: July four if I was on a boat with my
44:28
Speaker 2: attorneys and.
44:29
Speaker 3: We took a picture from the boat of the Federal Courthouse.
44:33
Speaker 3: Like everything that's happened. Now you get to view it
44:35
Speaker 3: from this side. Yeah, and I sent it to the prosecutor.
44:39
Speaker 2: When I first got out, I didn't want to live
44:41
Speaker 2: with nobody, to deal with nobody. So we have a
44:44
Speaker 2: guy who was also exonerated, who has an exign of
44:48
Speaker 2: ree house in Cleveland.
44:49
Speaker 3: We have so much injustice, so we have a lot
44:51
Speaker 3: of exgneries and they take care of each other. So
44:53
Speaker 3: one of them bought a house for all ex honeries
44:55
Speaker 3: to live in when they're in this position when they
44:57
Speaker 3: first get out, Charles, Checks and Raymond.
45:00
Speaker 1: We had the good fortune of covering Charles's story with
45:03
Speaker 1: Maggie Feeling, and we'll make sure to link it in
45:06
Speaker 1: the episode descriptions, so check it out.
45:08
Speaker 2: I've been doing Charles for a long time, so I
45:11
Speaker 2: mean he was familiar with me, But for like the
45:13
Speaker 2: first three weeks, the only thing I did was went
45:16
Speaker 2: from my bedroom to the bathroom, to the kitchen back
45:19
Speaker 2: to my bedroom, like I was steal in a sale.
45:24
Speaker 2: Since I've been home, Kim gave me a job with
45:26
Speaker 2: the law firm.
45:27
Speaker 3: So right now on the docket, it's his appeal. I'm
45:30
Speaker 3: confident we're going to win. We've already had rulings from
45:33
Speaker 3: the Sixth Circuit when they released him, saying that they
45:36
Speaker 3: don't believe that the warden has a winnable position, so
45:40
Speaker 3: that's really favorable. Nonetheless, we're going full steam ahead and
45:43
Speaker 3: that's submitted to the court and it's going to be
45:45
Speaker 3: decided without oral argument. And so as soon as we
45:47
Speaker 3: get a decision, that ankle monitor is going to come
45:50
Speaker 3: off and he will be free. Hopefully he'll decide to
45:54
Speaker 3: pursue his civil remedies because a lot has been taken
45:56
Speaker 3: from him. In the meantime, he's doing everything can. He's
46:01
Speaker 3: been working. He's gotten himself an ID. He has MS
46:04
Speaker 3: and diabetes, so he's gotten his medical setup and taken
46:07
Speaker 3: care of which is a lot of steps. But he
46:09
Speaker 3: could use all the support in the world. So if
46:12
Speaker 3: anybody has anything to offer, he's been saving to get
46:15
Speaker 3: a vehicle, he certainly needs business clothes for job interviews
46:19
Speaker 3: or stuff like that, and he desperately wants to go
46:21
Speaker 3: back to school, and so people have resources that they
46:23
Speaker 3: could lend to him to give him support. We would
46:27
Speaker 3: be happy to help facilitate those resources directly to him.
46:30
Speaker 1: And we'll link ways to contact Kim and get David
46:33
Speaker 1: to support he needs, and with that we're going to
46:37
Speaker 1: go to closing arguments. Closing arguments, everyone knows is my
46:40
Speaker 1: favorite part of the show, where I'm going to kick
46:43
Speaker 1: back in my chair, turn my microphone off and leave
46:46
Speaker 1: my headphones on and just listen to anything else you
46:50
Speaker 1: want to share with our amazing audience. And so Kim,
46:55
Speaker 1: you go first, and then just hand the microphone off
46:59
Speaker 1: to David. Then he could take us off into the sunset.
47:02
Speaker 3: This is a case with one of the most egregious
47:05
Speaker 3: identification procedures I've ever seen. Which is so appalling about
47:08
Speaker 3: it is how many courts justified and upheld the conduct,
47:12
Speaker 3: who gave it a pass in the state court at
47:15
Speaker 3: the appellate level, at the Ohio Supreme Court level, at
47:18
Speaker 3: the district court level, and federal court. It took eight
47:20
Speaker 3: years to get any justice, and then when we finally
47:24
Speaker 3: got that justice by way of an order, the state
47:26
Speaker 3: court threw it out in totally ignored it conduct that, frankly,
47:30
Speaker 3: if any of us engaged in would be criminalized. Were
47:33
Speaker 3: all required to follow the law, and the trial court
47:36
Speaker 3: thought they were above that. They stopped all over his
47:39
Speaker 3: rights through a second trial, and then used an unconstitutional
47:42
Speaker 3: second conviction to justify their misconduct. We're so thankful that
47:47
Speaker 3: the district court sought through it. But if you imagine
47:50
Speaker 3: being responsible for someone's life and freedom as their attorney,
47:54
Speaker 3: he turned down a flea he could have been free,
47:57
Speaker 3: and then for four months he lived with a twenty
47:59
Speaker 3: year cent hanging over his head and just the hope
48:02
Speaker 3: that the federal court would step in and enforce its
48:04
Speaker 3: prior ruling. We're so thankful it did, but here we
48:07
Speaker 3: are still up against it in the Federal Court of Appeals.
48:10
Speaker 3: And this case is a story of even when you
48:14
Speaker 3: get justice through your immediate appellate procedure, it can take
48:18
Speaker 3: a full decade, And even when you find a judge
48:21
Speaker 3: who's willing to say and do the right thing, there's
48:24
Speaker 3: a slew of judges below them who aren't.
48:27
Speaker 2: In Ohio, we have a feal that's on the ballot
48:30
Speaker 2: called the absolute Immunity View. If it's passed in Ohio
48:34
Speaker 2: would be the very first time that anything like this
48:38
Speaker 2: has been passed. And that deal makes judges, prosecutors, detectives, police,
48:46
Speaker 2: anything of authority can be prosecuted for what they do
48:50
Speaker 2: for violding the person's constitutional rights because right now, like
48:54
Speaker 2: it is so thick where they don't have to answer
48:57
Speaker 2: to nobody, they could do what they want and put
48:59
Speaker 2: it up under job duties. You cannot turn over evidence
49:02
Speaker 2: and say it was part of my investigation. The judge
49:05
Speaker 2: can violate your constitutional rights and know that there's no
49:08
Speaker 2: consequences for these people. Them. People need to be held
49:10
Speaker 2: accountable because if I watched so and so take a
49:14
Speaker 2: piece of paper from so and so, and the detective
49:17
Speaker 2: come and ask me and say did you see that happen?
49:19
Speaker 2: And I say no, I got a case because I lied.
49:23
Speaker 2: But a prosecutor and a jug can lie all day long,
49:26
Speaker 2: can withhold evidence, can cover up whatever they want to
49:29
Speaker 2: because there's no consequences for them. That's why this bill
49:32
Speaker 2: in Ohio is so important. And when I spoke at
49:36
Speaker 2: the Wrongful Conviction Days, that was one of the things
49:38
Speaker 2: I spoke about. All this is beautiful, but if people
49:42
Speaker 2: don't get out and vote on that bill, we're going
49:45
Speaker 2: to continue to have wrongful Conviction Days.
49:55
Speaker 1: Thank you for listening to Wrongful Conviction. You can listen
49:57
Speaker 1: to this and all the Lava for Good podcast one
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Speaker 1: week early and ad free by subscribing to Lava for
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Speaker 1: Good plus on Apple Podcasts. I want to thank our
50:06
Speaker 1: production team Connor Hall and Kathleen Fink, as well as
50:09
Speaker 1: my fellow executive producers Jeff Kempler, Kevin Wartis, and Jeff Cliber.
50:13
Speaker 1: The music in this production was supplied by three time
50:15
Speaker 1: OSCAR nominated composer Jay Ralph. Be sure to follow us
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Speaker 1: across all social media platforms at Lava for Good and
50:21
Speaker 1: at Wrongful Conviction. You can also follow me on Instagram
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Speaker 1: at It's Jason Flamm. Wrongful Conviction is a production of
50:27
Speaker 1: Lava for Good Podcasts and association with Signal Company Number One.
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50:33
Speaker 1: in this show are accurate.
50:35
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Speaker 2: those of Lava for Good.